Danny Sellers v. United States

In the United States Court of Federal Claims

No. 12-855 C

(Filed: March 25, 2013)

)

DANNY SELLERS et al., ) Lack of Subject Matter

) Jurisdiction; RCFC 12(b)(1);

Plaintiffs, ) Federal Tort Claims Act;

) Tort Claims; Eighth Amendment;

v. ) Constitutional Claims; Transfer to

) District Court; Pro Se; Bad-Faith

THE UNITED STATES, ) Conduct; Sanction Pursuant to

) Court’s Inherent Power

Defendant. )

)

Danny Sellers and Tyrone Nunn, Beaumont, TX, pro se.

Joseph A. Pixley, Trial Attorney, with whom were Stuart F. Delery, Principal Deputy

Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt,

Assistant Director, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

HEWITT, Chief Judge

I. Background

Plaintiffs Danny Sellers and Tyrone Nunn, appearing pro se, filed the above-

captioned case on December 10, 2012,1 which they have identified as a “class action”

1

Plaintiffs neither paid the court’s filing fee nor submitted an application to proceed in

forma pauperis. Nevertheless, the court infers a request to proceed in forma pauperis and

GRANTS that request for the limited purpose of determining whether the court has jurisdiction

over this case, notwithstanding that at least one of the plaintiffs is barred from proceeding in

forma pauperis under 28 U.S.C. § 1915(g) (2006).

Pursuant to 28 U.S.C. § 1915(g), a prisoner is barred from bringing a civil action in forma

pauperis “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any

facility, brought an action or appeal in a court of the United States that was dismissed on the

grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,

suit. See Fed. Tort Claim (Complaint or Compl.), Docket Number (Dkt. No.) 1, at 1

(capitalization and emphasis omitted); see also id. at 2 (stating that the plaintiffs “bring[]

this claim as a class action”). Plaintiffs, who are incarcerated at the Federal Correctional

Institution-Low in Beaumont, Texas, see id. at 3 (referencing “F.C.I.LOW”), 8

(certificate of service giving plaintiffs’ location as Beaumont, Texas); id. at Ex. 2

(Federal Bureau of Prisons form for request of administrative remedy identifying the

relevant institution as “F.C.I. LOW”) 1, allege that their “future health” is threatened by

incarceration “in a Carcinogenic . . . environment,” Compl. 1. More specifically,

plaintiffs allege that defendants--who are listed in the caption as the United States, Eric

Holder in his capacity as Attorney General, or M. Martin and Carlos Rivera, see id.; cf.

id. at 3 (describing defendants “as the wardens of F.C.I.LOW”)--“subjected the plaintiffs

to a []carcinogenic living environment against their will[s] for prolonged periods of

time,” owing “to the use of scented fabric soft[e]ners and scented laundry detergent in the

unit washers,” id. at 3 (capitalization and emphasis omitted).

More specifically, plaintiffs complain that their clothes were washed and dried

using these products and that “[t]he unit dryers were not ventilated[,] causing . . . fumes

to be emitted . . . [and] carried through out [sic] the entire unit.” Id. Plaintiffs state that

“[t]he unit washer and dryers operated from 5 AM to 12 PM [sic] at night . . . spewing

out over 25 toxic volatile organic compounds” and “seriously threaten[ing] the future

health of the plaintiffs.” Id. In support of their position, plaintiffs have attached as

Exhibit 1 to their Complaint a page from Men’s Health magazine, which warns readers

that researchers at the University of Washington found that, “[a]fter washing laundry in

scented detergent and drying it with scented softener sheets, . . . the dryer exhaust

contained 25 toxic volatile organic compounds.” Id. at Ex. 1 (Men’s Health article) 1.

The article suggests that readers “[r]educe [their] risk by using fragrance-free products,

unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

The court observes that plaintiff Tyrone Nunn, while incarcerated, has brought three or more

claims that were dismissed as frivolous. See, e.g., In re Nunn, No. 12-40257, slip op. at 2-3 (5th

Cir. May 3, 2012) (per curiam) (sanctioning plaintiff for filing a petition for writ of mandamus

“three times over the past twelve months” and stating that “Nunn’s challenge to the authority of

the federal district courts over federal criminal offenses is frivolous”); Nunn v. Martin, No. 1:11-

CV-448, slip op. at 1 (E.D. Tex. Dec. 14, 2011), Docket Number (Dkt. No.) 18 (adopting report

of magistrate judge, who recommended dismissing the case pursuant to 28 U.S.C. § 1915 “as

frivolous and for failure to state a claim upon which relief may be granted”); Nunn v. Rivera, No.

1:12cv233, slip op. at 1 (E.D. Tex. May 30, 2012), Dkt. No. 4 (dismissing case pursuant to 28

U.S.C. § 1915(g)); see also infra Part III.C (discussing instances of filing in bad faith). Plaintiff

Danny Sellers has also brought at least one claim while incarcerated that was dismissed as

frivolous. E.g., Sellers v. Martin, No. 1:11-CV-624, slip op. at 1-2 (E.D. Tex. Feb. 15, 2013),

Dkt. No. 5 (adopting report of magistrate judge, who recommended dismissing the action “as

frivolous and for failing to state a claim upon which relief may be granted”); see also Sellers v.

Vasquez, No. 1:13cv21, slip op. at 4 (E.D. Tex. Feb. 13, 2013), Dkt. No. 4 (recommending that

plaintiff’s complaint be “dismissed as frivolous and for failing to state a claim upon which relief

may be granted” in magistrate judge’s report not yet ruled on by the court).

2

and if [their] dryer[s] vent[] outside, [by] keep[ing] nearby windows closed.” Id.

Plaintiff Tyrone Nunn previously submitted a request to the prison to have the unit dryers

ventilated. See Compl. Ex. 2 (Federal Bureau of Prisons form for request of

administrative remedy, dated August 13, 2012) 1. Plaintiffs contend that “defendants are

still acting negligent for failing to make sure the unit dryers are all ventilated after

receiving our complaint.” Compl. 4.

Plaintiffs now seek “$ 10 Billion Dollars for this negligent act by the defendants

acting under color of federal authority,” id. at 4, and also claim that defendants’ conduct

violates the Eighth Amendment of the United States Constitution, id. at 2. Plaintiffs

assert that jurisdiction in this court is proper pursuant to the Tucker Act, 28 U.S.C. §

1491(a)(1) (2006), and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, and invoke

the Eighth Amendment.2 See id. at 2 (citing 28 U.S.C. § 2674 and the Tucker Act in

support of jurisdiction and stating that the “claim involves the 8th Amendment”). The

United States (defendant or the government) has filed a motion to dismiss for lack of

subject matter jurisdiction on the basis that “the Court does not possess jurisdiction to

entertain claims that sound in tort.” Def.’s Mot. to Dismiss (defendant’s Motion or Def.’s

Mot.), Dkt. No. 4, at 1.

Now before the court are plaintiffs’ Complaint, filed December 10, 2012, and

defendant’s Motion, filed February 8, 2013. Pursuant to the Rules of the United States

Court of Federal Claims (RCFC), plaintiffs had thirty-one days to file a response to

defendant’s Motion. See RCFC 7.2(b)(1) (allowing twenty-eight days to respond to a

motion to dismiss); RCFC 6(d) (allowing three additional days when a motion to dismiss

is served by mail). As of the date of this Opinion and Order, plaintiffs have failed to

submit a response. Nevertheless, because the court finds that it lacks jurisdiction for the

reasons stated below, defendant’s Motion is GRANTED and plaintiffs’ claims are

dismissed.

II. Legal Standards

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Rule 12(b)(1) of the RCFC governs motions to dismiss for lack of subject matter

jurisdiction. See RCFC 12(b)(1). Because subject matter jurisdiction is a threshold

2

Plaintiffs also cite to the Judicial Code of 1911, ch. 7, Pub. L. No. 61-475, 36 Stat.

1087, 1135-43 (governing the United States Court of Claims), in support of jurisdiction. See

Fed. Tort Claim (Complaint or Compl.), Dkt. No. 1, at 2. The United States Court of Claims

(Court of Claims) was the predecessor court to this court and a predecessor to the United States

Court of Appeals for the Federal Circuit. Section 145 of the Judicial Code of 1911, which

preceded the Tucker Act, established the jurisdiction of the Court of Claims over “cases not

sounding in tort, in respect of which claims the party would be entitled to redress against the

United States.” 36 Stat. 1136. The Judicial Code of 1911 does not provide plaintiffs with a basis

for jurisdiction in this court.

3

matter, it must be established before the case can proceed on the merits. Steel Co. v.

Citizens for a Better Env’t (Steel Co.), 523 U.S. 83, 94-95 (1998); PODS, Inc. v. Porta

Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007). Pursuant to the Tucker Act, this court

has jurisdiction over “claim[s] against the United States founded . . . upon the

Constitution, or any Act of Congress or any regulation of an executive department, or

upon any express or implied contract with the United States, or for liquidated or

unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis

added). Although the Tucker Act serves as a waiver of sovereign immunity and a

jurisdictional grant, it does not create a substantive cause of action. Jan’s Helicopter

Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). Therefore, a

plaintiff must satisfy the court that “‘a separate source of substantive law . . . creates the

right to money damages.’” Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172

(Fed. Cir. 2005) (en banc in relevant part)).

This court has no authority to hear tort claims against the United States because

the Tucker Act expressly excludes such claims from the jurisdiction of the court. See

Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (citing 28 U.S.C. § 1491(a)

and Keene Corp. v. United States, 508 U.S. 200, 214 (1993)); see, e.g., Souders v. S.C.

Pub. Serv. Auth., 497 F.3d 1303, 1307 & n.5 (Fed. Cir. 2007) (holding that the plaintiff’s

negligence claims sounded in tort and thus were beyond the jurisdiction of the United

States Court of Federal Claims (Court of Federal Claims)); Moore v. Durango Jail, 77

Fed. Cl. 92, 96 (2007) (holding that the Court of Federal Claims did not have jurisdiction

over the plaintiff’s claim because the “plaintiff’s claim of negligence sounds in tort”).

The proper forum for federal tort claims is a United States district court.3 28 U.S.C. §

1346(b)(1). This court also lacks “jurisdiction over claims arising under the Eighth

Amendment, as the Eighth Amendment is not a money-mandating provision.” Trafny v.

United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (per curiam) (internal quotation

marks omitted).

Further, the Court of Federal Claims has jurisdiction only over claims against the

United States. 28 U.S.C. § 1491(a)(1); see United States v. King, 395 U.S. 1, 2-3 (1969)

(stating that the jurisdiction of the Court of Federal Claims “has been limited to money

claims against the United States Government” since Congress created the court in 1855);

RCFC 10(a) (stating that the title of the complaint must designate the United States as

defendant); see also RCFC 4 rules committee note (2002) (stating that “only the United

States is properly the named defendant”).

3

United States district courts have exclusive jurisdiction to hear tort claims against the

United States, including all claims under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80

(2006). See 28 U.S.C. § 1346(b)(1). However, before a Federal Tort Claims Act claim may

proceed in a district court, the claimant must first present his claim to the appropriate federal

agency. Id. § 2675(a). Only after the appropriate agency issues a final decision denying a

Federal Tort Claims Act claim may it be brought in a United States district court. Id.

4

In evaluating a motion to dismiss for lack of jurisdiction under RCFC 12(b)(1), the

court must accept as true the nonmoving party’s allegations of fact and draw all

reasonable inferences in the nonmoving party’s favor. Henke v. United States, 60 F.3d

795, 797 (Fed. Cir. 1995); see also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d

746, 747 (Fed. Cir. 1988). Nevertheless, plaintiffs have the burden of establishing the

court’s subject matter jurisdiction by a preponderance of the evidence. McNutt v. Gen.

Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Reynolds, 846 F.2d at 748.

Pro se plaintiffs are “[held] to less stringent standards than . . . lawyers,” see Haines v.

Kerner, 404 U.S. 519, 520 (1972), but must still meet basic jurisdictional requirements,

Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987); see Henke,

60 F.3d at 799 (“The fact that [the plaintiff] acted pro se in the drafting of his complaint

may explain its ambiguities, but it does not excuse its failures . . . .”). If the court

determines that it lacks jurisdiction, it must dismiss the action. RCFC 12(h)(3).

B. Transfer to District Court

When the court dismisses a case for lack of jurisdiction, it has an obligation to

determine whether transfer to another federal court that may have jurisdiction over the

claims is appropriate. See 28 U.S.C. § 1631 (stating that “the court shall, if it is in the

interest of justice, transfer [a case over which it lacks jurisdiction] to any other such court

in which the action or appeal could have been brought at the time it was filed or

noticed”); Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1375 (Fed. Cir. 2005)

(recognizing “the statutory requirement that transfer be considered to cure jurisdictional

defects”); see also 28 U.S.C. § 610 (defining “courts” to which transfer is allowed under

28 U.S.C. § 1631).

C. Authority to Order Sanctions

The court has “inherent powers enabling it to manage its cases and courtroom

effectively and to ensure obedience to its orders.” Pac. Gas & Electric Co. v. United

States (PG&E), 82 Fed. Cl. 474, 480 (2008) (internal quotation marks and brackets

omitted); see In re Bailey, 182 F.3d 860, 864 (Fed. Cir. 1999) (“The United States

Supreme Court and federal courts of appeals have repeatedly recognized that regulation

of attorney behavior is an inherent power of any court of law and falls within the

discretion of such court.”). “These powers are governed not by rule or statute but by the

control necessarily vested in courts to manage their own affairs so as to achieve the

orderly and expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32,

43 (1991) (internal quotation marks omitted). “Because of their very potency, inherent

powers must be exercised with restraint and discretion. A primary aspect of that

discretion is the ability to fashion an appropriate sanction for conduct which abuses the

judicial process.” Id. at 44-45 (internal citation omitted).

5

The court also has authority to sanction based on Rule 11 of the RCFC.4 Rule 11

requires an attorney or unrepresented party to make certain certifications about any

documents presented to the court, based on “an inquiry reasonable under the

circumstances.” RCFC 11(b). Rule 11 sanctions are appropriate when an attorney or

unrepresented party fails to act with “candor and truthfulness” in making such

certifications. See PG&E, 82 Fed. Cl. at 478 n.2; cf. RCFC 11(b)-(c) (describing bases

for Rule 11 sanctions). “In evaluating whether the signer of a filing has violated Rule 11,

the . . . court applies an objective standard of reasonableness. . . .” Colida v. Nokia, Inc.,

347 F. App’x 568, 571 (Fed. Cir. 2009) (unpublished) (internal quotation marks omitted).

In determining whether an anti-filing injunction is appropriate under Rule 11, the trial

court “should make findings ‘as to any pattern’ of behavior, looking to ‘both the number

and content of the filings as indicia of frivolousness and harassment.’” Hemphill v.

Kimberly-Clark Corp., 374 F. App’x 41, 45 (Fed. Cir. 2010) (unpublished) (quoting In re

Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)).

A court’s rules do not displace its inherent power to impose sanctions for bad-faith

conduct. Chambers, 501 U.S. at 46. Indeed, this “[inherent] power is both broader and

narrower than other means of imposing sanctions.” Id. It is broader in that it “extends to

a full range of litigation abuses.” Id. And it is narrower in that “a court’s inherent power

to impose attorney’s fees as a sanction” is effectively limited to “cases in which a litigant

has engaged in bad-faith conduct or willful disobedience of a court’s orders,” as

distinguished from “conduct which merely fails to meet a reasonableness standard.” Id.

at 47; cf. RCFC 11(b) (imposing a reasonableness standard). “[W]hen there is bad-faith

conduct in the course of litigation that could be adequately sanctioned under the Rules,

the court ordinarily should rely on the Rules rather than the inherent power. But if in the

informed discretion of the court, . . . the Rules are [not] up to the task, the court may

safely rely on its inherent power.” Chambers, 501 U.S. at 50.

III. Discussion

A. Dismissal for Lack of Subject Matter Jurisdiction

Defendant argues that plaintiffs “cannot meet their burden of establishing subject

matter jurisdiction for the Court to entertain this case.” Def.’s Mot. 3. Defendant is

correct. To the extent that plaintiffs bring suit against defendants other than the United

States, see Compl. 1 (listing Eric Holder, M. Martin and Carlos Rivera as defendants on

the caption), 3 (describing defendants “as the wardens of F.C.I.LOW”), the Court of

4

The Rules of the United States Court of Federal Claims (RCFC) generally mirror the

Federal Rules of Civil Procedure (FRCP). See RCFC 2002 rules committee note

(“[I]nterpretation of the court’s rules will be guided by case law and the Advisory Committee

Notes that accompany the Federal Rules of Civil Procedure.”). RCFC 11 is substantially

identical to Rule 11 of the FRCP. Compare RCFC 11, with FRCP 11. Therefore, the court relies

on cases interpreting FRCP 11 as well as those interpreting RCFC 11.

6

Federal Claims lacks jurisdiction over plaintiffs’ claims against these other defendants,

cf. 28 U.S.C. § 1491(a)(1) (providing the Court of Federal Claims with jurisdiction over

certain types of claims against the United States); King, 395 U.S. at 2-3.

Further, even assuming the truth of plaintiffs’ allegations and drawing all

inferences in favor of plaintiffs, cf. Henke, 60 F.3d at 797; Reynolds, 846 F.2d at 747, the

court, for the following reasons, concludes that it lacks jurisdiction over plaintiffs’ claims

to the extent that they are alleged against the United States and finds that plaintiffs have

not met their burden of establishing the court’s subject matter jurisdiction by a

preponderance of the evidence, cf. McNutt, 298 U.S. at 189; Reynolds, 846 F.2d at 748.

Plaintiffs assert the Tucker Act and the Federal Tort Claims Act as the bases of

this court’s jurisdiction over their claims. See Compl. 2 (citing 28 U.S.C. § 2674 and the

Tucker Act in support of jurisdiction); see also id. at 1 (titling Complaint “Federal Tort

Claim”). However, this court lacks jurisdiction over claims brought under the Federal

Tort Claims Act; United States district courts have exclusive jurisdiction to hear tort

claims against the United States, including all claims under the Federal Tort Claims Act.

See 28 U.S.C. § 1346(b)(1). Moreover, cases sounding in tort are expressly excluded

from the court’s jurisdiction pursuant to the Tucker Act. 28 U.S.C. § 1491(a)(1)

(providing for jurisdiction over “claim[s] against the United States . . . not sounding in

tort” (emphasis added)); see Brown, 105 F.3d at 623. Plaintiffs characterize their claim

as “a claim of negligence.” Compl. 1; see also id. at 2 (discussing defendants’

“negligence”), 3 (stating that defendants “acted negligently” and “failed to use care that a

prudent person exercises”), 4 (similar). Because a claim of negligence is a claim

sounding in tort, the Court of Federal Claims lacks jurisdiction over plaintiffs’ negligence

claim under the Tucker Act. Cf. Souders, 497 F.3d at 1307 & n.5 (holding that the

plaintiff’s negligence claims sounded in tort and thus were beyond the jurisdiction of the

Court of Federal Claims); Moore, 77 Fed. Cl. at 96 (holding that the Court of Federal

Claims did not have jurisdiction over the plaintiff’s claim because the “plaintiff’s claim

of negligence sounds in tort”). Therefore, neither the Tucker Act nor the Federal Tort

Claims Act provides the court with jurisdiction over plaintiffs’ negligence claim.

Plaintiffs also assert that their “claim ‘arises under’ the VIII Amendment,” Compl.

2, but this assertion, too, fails to bring plaintiffs’ claim within the court’s jurisdiction.

Because the Tucker Act does not itself create a substantive cause of action, Jan’s

Helicopter Serv., Inc., 525 F.3d at 1306, plaintiffs must identify “a separate source of

substantive law . . . [that] creates the right to money damages,” id. (internal quotation

marks omitted). To the extent that plaintiffs attempt to identify the Eighth Amendment

as a money-mandating source, see Compl. 2 (stating under the heading “Jurisdiction” that

“[t]his claim involves the 8th Amendment”), such an attempt fails, cf. Trafny, 503 F.3d at

1340 (stating that this court lacks “jurisdiction over claims arising under the Eighth

Amendment, as the Eighth Amendment is not a money-mandating provision” (internal

quotation marks omitted)).

7

Because plaintiffs have failed to identify any basis for jurisdiction in this court, cf.

McNutt, 298 U.S. at 189 (stating that plaintiffs have the burden of establishing the court’s

jurisdiction by a preponderance of the evidence); Reynolds, 846 F.2d at 748 (same), and

the court cannot infer any other basis for jurisdiction from plaintiffs’ Complaint,

plaintiffs’ claims must be dismissed, see RCFC 12(h)(3). Accordingly, defendant’s

Motion is GRANTED.

B. Transfer Is Not Appropriate

After determining that it lacks jurisdiction over plaintiffs’ claims, the court must

consider whether transfer to another federal court under 28 U.S.C. § 1631 is appropriate

to “cure jurisdictional defects.” Cf. Tex. Peanut Farmers, 409 F.3d at 1375; 28 U.S.C. §

1631; id. § 610 (defining “courts” to which transfer is allowed under 28 U.S.C. § 1631).

Transfer is appropriate when “the action or appeal could have been brought [in the

transferee court] at the time it was filed or noticed,” and transfer “is in the interest of

justice.” 28 U.S.C. § 1631.

Here, the court finds that transfer is not in the interest of justice because plaintiff’s

have failed to pay the court’s filing fee or file an application to proceed in forma

pauperis, see supra note 1, and have failed to file a response to defendant’s Motion in

accordance with the RCFC, see supra Part I. Further, plaintiffs have a history of

initiating numerous actions that appear to be without merit, and, because these filings by

plaintiffs appear to be part of a pattern of filing in bad faith, see infra Part III.C

(discussing plaintiffs’ litigation history), it is not in the interest of justice to transfer this

case, cf. 28 U.S.C. § 1631.

In addition, plaintiffs’ claims against the government likely could not have been

brought in a district court at the time their Complaint was filed because plaintiffs have

not presented any evidence that they received a final decision from the appropriate

federal agency. Cf. id. § 2675(a) (requiring a final decision denying a Federal Tort

Claims Act claim at the agency level before the claim may be brought in a district court);

see also supra note 3 (describing process for bringing a Federal Tort Claims Act claim in

a district court). Although plaintiffs have submitted a request for an administrative

remedy to the Federal Bureau of Prisons, see Compl. Ex. 2 (Federal Bureau of Prisons

form for request of administrative remedy, dated August 13, 2012), this does not

constitute a final agency decision. To receive a final agency decision, plaintiffs would

have had to complete a four-step process (used in all institutions run by the Bureau of

Prisons): make an informal complaint; file a request for an administrative remedy;

appeal to the regional director; and appeal to the general counsel to the Bureau of Prisons.

Cf. 28 C.F.R. §§ 542.10-19 (2012) (describing the administrative remedy program);

Jordan v. Fed. Bureau of Prisons, No. 09 Civ. 8561(ALC), 2013 WL 1143617, at *3

(S.D.N.Y. Mar. 19, 2013) (describing the four-step process); Compl. Ex. 2 (Federal

Bureau of Prisons form for request of administrative remedy, stating, “If dissatisfied with

8

this response, you may appeal to the Regional Director”). Further, because United States

district courts have exclusive jurisdiction over tort claims against the government, see 28

U.S.C. § 1346(b)(1), no other forum exists to which this claim could be transferred.

Accordingly, the court finds that transfer of plaintiffs’ claims against the government

would not be in the interest of justice. Cf. id. § 1631.

To the extent that plaintiffs assert additional claims against individuals other than

the government, see Compl. 1 (listing Eric Holder, M. Martin and Carlos Rivera as

defendants on the caption), 3 (describing defendants “as the wardens of F.C.I.LOW”), the

court has not been able to identify a claim that is cognizable under federal law and finds

inadequate grounds in plaintiffs’ Complaint for concluding that plaintiffs have met the

requirements for bringing any state claim against any of the individual defendants in a

diversity action in federal court, cf. 28 U.S.C. § 1332(a) (providing for diversity

jurisdiction in federal court when certain conditions are met); John Birch Soc’y v. Nat’l

Broad. Co., 377 F.2d 194, 197 (2d Cir. 1967) (stating that “diversity of citizenship must

be apparent from the pleadings” in cases based on diversity jurisdiction). Moreover,

claims by both plaintiffs filed in federal court and dismissed as frivolous appear to be

against some of these same individuals. See supra note 1 (describing claims dismissed as

frivolous by plaintiff Tyrone Nunn against Rivera and Martin, and by plaintiff Danny

Sellers against Martin); see also Nunn v. Rivera, No. 1:12cv509, slip op. at 1-2 (E.D.

Tex. Oct. 30, 2012), Dkt. No. 5 (recommending that plaintiff’s claim, based on the same

facts as those pleaded in this case, be dismissed pursuant to 28 U.S.C. § 1915(g)).

Therefore, the court also finds that transfer of plaintiffs’ claims against any individuals

other than the government would not be in the interest of justice. Cf. 28 U.S.C. § 1631.

C. Sanctions Warranted

Based on a review of plaintiffs’ Complaint and of cases filed by plaintiffs in other

federal courts, plaintiffs’ conduct warrants sanction pursuant to the court’s inherent

power. Cf. Chambers, 501 U.S. at 50-51 (affirming appeals court finding of “no abuse of

discretion in resorting to the inherent power” even though sanctions pursuant to Rule 11

of the Federal Rules of Civil Procedure could have been employed because only the

inherent power could reach an “entire course of conduct” that “evidenced bad faith and

an attempt to perpetrate a fraud on the court”). Sanctions under the court’s inherent

power are more appropriate in the present case than sanctions under Rule 11 of the RCFC

because plaintiffs have not failed to act with candor and truthfulness in their dealings

with the court. Compare PG&E, 82 Fed. Cl. at 478 n.2 (“Because counsel never

attempted to mislead the court nor acted with dishonesty toward the court in a pleading or

filing, RCFC 11 is not an appropriate basis upon which to fashion sanctions or remedies

in this case.”), and RCFC 11(b)-(c) (describing bases for Rule 11 sanctions), with

Chambers, 501 U.S. at 50-51 (stating that only the inherent power could provide

authority to sanction an “entire course of conduct” that “evidenced bad faith”). As

9

described below, plaintiffs’ filings demonstrate an entire course of conduct evidencing

bad faith. Cf. Chambers, 501 U.S. at 50-51.

Specifically, plaintiff Tyrone Nunn, while incarcerated, has brought numerous

claims that were dismissed as frivolous and that appear to have been filed in bad faith.

See supra note 1 (citing three previous actions dismissed as frivolous and concluding that,

as a result, plaintiff is barred from proceeding in forma pauperis); see also Nunn v.

Vasquez, No. 1:13cv97, slip op. at 2 (E.D. Tex. Feb. 26, 2013), Dkt. No. 4 (“[P]laintiff

has, on at least four prior occasions, while incarcerated, brought actions or appeals that

were dismissed as frivolous, malicious, or for failing to state a claim upon which relief

may be granted.”); Nunn v. Martin, No. 1:11-CV-571, 2011 WL 7006302, at *1 (E.D.

Tex. Dec. 1, 2011) (describing plaintiff as a “serial litigant in [the Eastern District of

Texas] and other districts in the states of Alabama and Georgia” and citing five other

cases, in addition to the cases cited by this court, as evidence that plaintiff is barred from

proceeding in forma pauperis). Plaintiff Tyrone Nunn has also repeatedly filed petitions

for a writ of mandamus that demonstrate indicia of bad faith. See In re Nunn, No. 12-

14651-E, slip op. at 2 (11th Cir. Oct. 16, 2012) (stating that “Nunn’s request for a

mandamus order . . . is not warranted because he had the adequate alternative remedy of

appealing his convictions and sentences, which he exercised” and dismissing plaintiff’s

petition as “frivolous”); In re Nunn, No. 12-40257, slip op. at 3 (5th Cir. May 3, 2012)

(per curiam) (stating that “Nunn has three times sought mandamus relief only a few

weeks, and in this instance only one week, after filing his suit in district court” and

warning plaintiff “that he should allow a minimum of six months to pass . . . before he

considers whether it is appropriate to move this court for mandamus relief” and that

“frivolous arguments, such as the present one, will not be tolerated”).

Plaintiff Danny Sellers has filed at least one claim while incarcerated that was

dismissed as frivolous, see supra note 1, and has filed other complaints in collaboration

with Tyrone Nunn that appear to be frivolous. See Compl. at 1-2, Sellers v. Vasquez, No.

1:13cv21 (E.D. Tex. Jan. 17, 2013), Dkt. No. 1 (listing Danny Sellers and Tyrone Nunn,

among others, as plaintiffs5); Sellers v. Vasquez, No. 1:13cv21, slip op. at 4 (E.D. Tex.

Feb. 13, 2013), Dkt. No. 4 (recommending that the complaint be “dismissed as frivolous

and for failing to state a claim upon which relief may be granted” in magistrate judge’s

report not yet ruled on by the court). Moreover, both plaintiffs have had claims

dismissed for failure to prosecute after failing to comply with court rules requiring

payment of filing fees. E.g., Entry of Dismissal at 2, Nunn v. United States, No. 12-

14665-A (11th Cir. Oct. 26, 2012); Entry of Dismissal at 2, In re Nunn, No. 12-12608-A

(11th Cir. July 10, 2012); Sellers v. Rivera, No. 1:12-CV-460, slip op. at 2 (E.D. Tex.

Jan. 2, 2013), Dkt. No. 9 (recommendation of magistrate judge adopted by the court).

5

The court notes that the claims of each plaintiff were severed and that, although Danny

Sellers’ claims proceeded under the case number originally assigned to the case, the claims of the

remaining plaintiffs were assigned separate case numbers. See Order Severing the Case at 2,

Sellers v. Vasquez, No. 1:13cv21 (E.D. Tex. Feb. 13, 2013), Dkt. No. 2.

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Through this course of conduct, plaintiffs have demonstrated “conduct which

abuses the judicial process.” Cf. Chambers, 501 U.S. at 44-45. Such conduct is the

proper subject of an exercise of this court’s discretion to “fashion an appropriate

sanction” pursuant to its inherent power. See id. at 44.

IV. Conclusion

For the reasons stated, the court concludes that it lacks jurisdiction over plaintiffs’

claims and that the transfer of any of plaintiffs’ claims is not in the interest of justice.

Defendant’s Motion is GRANTED and plaintiff’s Complaint is DISMISSED. The Clerk

of Court shall ENTER JUDGMENT in favor of defendant.

Further, the court finds that plaintiffs have filed suit in this court in bad faith and

deserve to be sanctioned pursuant to the court’s inherent power. The office of the Clerk

of Court SHALL REFER, unfiled, any future proposed filing by either of the plaintiffs,

together with a copy of this Opinion and Order, to a judge of the court, who will

determine if any such proposed filing demonstrates indicia of being filed in bad faith. If

so directed by a judge of the court, the office of the Clerk of Court will reject such

document for filing.

IT IS SO ORDERED.

_______________

EMILY C. HEWITT

Chief Judge

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